1. With respect to permit application no. P441/07, the responsible authority's decision is varied.
2. A permit is granted and directed to be issued for land at 85 favourite Hill Road, Pearcedale. The permit allows earthworks for a private motor bike track in accordance with the endorsed plans. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on 22 April 2008 but with the following variations:
   • (a) Conditions 1 and 2 Notice of Decision to Grant a Permit to be included as conditions 1 and 2 on the permit.
   • (b) Add the following new conditions which are to be included as conditions 3 and 4 on the permit:
     1. The use of the track must only be used:

1. On not more than 5 days in any calendar week. 2. On any 3 days within a calendar week, for not more than 2.5 hours (including rest periods)

1. On any 2 days within a calendar week, for not more than 2.5 hours (including rest periods)

1. Only between the hours of 9.00am and 6.00pm on weekdays (not including public holidays) 2. Only between the hours of 10.00am and 6.00pm on weekends and public holidays. 2. The noise emitted from the use of motor bikes must not exceed 94dB(a). Any motor bike or other recreational vehicle must be noise emission tested by an authorised EPA Noise Emission Control Agent. Except with the further consent of the Responsible Authority, an original EPA noise testing certificate must be submitted to Council within 28 days of this permit. The cost of the EPA test must be borne by the applicant or owner/occupier of the land.
   • (c) Conditions 3 to 15 (inclusive) on the Notice of Decision to Grant a Permit to be renumbered and included as conditions 5 to 17 on the permit.

(Given orally at the end of the hearing but subsequently revised and amplified)

1. This was an application under Section 82 of the Planning and Environment Act 1987 against the Casey City Council's decision to grant a permit for the construction of earthworks on land known at 85 Favourite Hill Road, Pearcedale. The earthworks are required to provide ramps, jumps and turns for a motorcross track that exists on the land. The works have already been undertaken without a permit and the permit application seeks permission retrospectively.
2. In coming to my decision, I have adopted the usual practice of the tribunal in cases where retrospective approval is sought; that is, the applicant should not gain an advantage because the works are there, but at the same time, a permit should not be denied as a form of punishment if on the merits, the proposal is satisfactory.
3. Ms Gillson opposes the grant of the permit essentially because of the noise impacts associated with the use of the track; however, other concerns were raised about the impacts on the natural environment. It was requested that the permit not be granted, or alternatively, that conditions be imposed restricting the use of the track.
4. The background to this matter is as follows.
5. The site is located about 2.6km northwest of the township of Pearcedale. The site comprises a rural residential property of irregular shape with an area of about 3263 square metres. Photographs tabled at the hearing show that a dwelling within which Ms Gardiner and her family reside and associated outbuildings occupy the site, with these buildings located toward the frontage.
6. The photographs also show that the area to the rear of the dwelling is partly vegetated. Through the vegetation, a dirt track suitable for the riding of motorcross bikes has been developed. Ramps, jumps and curves have been developed on parts of the track through earthworks. The earthworks involved fill being brought onto the land and then compacted. The Council accepts that no trees have been removed; however, the impact on or loss of understorey vegetation is unclear.
7. The track is to be used by the applicant's sons, aged 16 and 18, to practice their chosen sport of motor cross. The track is to operate in accordance with the council's local law for "Recreational Vehicles"[1]. Under that local law, no more than four bikes would be allowed to use the track at any one time. Ms Gardiner said that riding would occur about 8 to 10 hours each week, between the hours of 11am and 6pm.
8. Ms Gillson is the owner and occupier of a rural residential property that abuts the rear part of the site's northern boundary.
9. Contextually the site is located within a rural residential area. Based on a map provided by Mr Cruise, there would appear to be about 12 dwellings within 250 metres of the site. From the aerial photograph tabled at the hearing, it is evident that much of the remnant vegetation on surrounding rural residential properties and land used for agricultural pursuits such as market gardening has been cleared.
10. Under the Planning Scheme the site is zoned Green Wedge 2. "Dwelling" is a Section 2 or permit required use in the zone. A permit is required for the construction of buildings and works in association with a Section 2 use under clause 35.04-5. A range of issues are to be considered under clause 35.04-6. Motor racing track is a Section 3 or prohibited use.
11. The site is also covered by the Environmental Significance Overlay 4 [ESO4] and, in part, the Land Subject to Inundation Overlay [LSIO].
12. The LSIO is not relevant to this case as the works do not fall within the area that it covers.
13. The works are however within the area covered by the ESO4 and therefore the environmental impacts need to be taken into account. Under Schedule 4, the site is within the "Cranbourne South Conservation Area". The statement of environmental significance for this area says that it is significant for its undulating landscape and remnant vegetation which provides a "natural vegetation link" and "wildlife corridor". Objectives to be achieved are to conserve and enhance the ecological values of environmentally sensitive land; and to maintain and enhance the rural character of the area.
14. Having set out the background to this matter I will now turn to the merits of the proposal.
15. The first question that needs to be addressed is whether the proposal constitutes a motor racing track, a use that is prohibited in the zone and for which a permit cannot be issued.
16. The Council considers that the track is ancillary to the overall use of the land for the purpose of dwelling. I agree. My conclusion is largely based on analysis of my colleague, Member Komesaroff in Monea v Cardinia Shire Council[2]. In Monea, permission was also sought and ultimately obtained for works to facilitate a motor cross track that was to be used by people living within a dwelling on a property zoned Green Wedge. After considering the planning scheme's provisions and a number of cases, Member Komesaroff said:

At first glance, the use of the motor crass track and super cross tracks is ancillary to the use of the land as a dwelling, as the Monea boys live on the land with their parents........

In my opinion, it makes no difference that one of the sons has achieved the level of a competition sportsperson, so that part of the use of the motor cycle tracks will be training by the other son or by a professional trainer. I do not think it changes the character of the land use from an ancillary one to an independent one. It is still incidental to the residential use of the land by the family.......

1. The proposition that a motor cycle track used by residents of a property would be ancillary to the use of the land as a dwelling on a large property within a rural context was also accepted by my colleagues Members Rickards and Carew in Rogers v Pyrenees SC[3]. Similarly, I find that the use of the track by the applicant's sons would be constitute the ancillary use associated with the dwelling.
2. It is however clear that a permit is required for the earthworks and consideration needs to be given to the environmental impacts.
3. While the Department of Sustainability and Environment [DSE] has expressed concerns about the impact on vegetation, I am not persuaded that the proposed works would have unreasonable environmental impacts.
4. First, there was no evidence of tree removal or removal of substantial amounts of vegetation. Second, the site is located in an area where the landscape appears to be heavily modified with the removal of vegetation on rural residential properties surrounding the site and other land used for agricultural purposes. The ecological values of the immediate area have been already been substantially altered. Third, according to DSE, the site is located in an area where, according to DSE mapping, "may have been Heathy Woodland, an Ecological vegetation Class [EVC] of Least Concern conservation significance within the Gippsland Plain Bioregion"[4]. Finally, I note that the permit applicant has accepted conditions requiring the revegetation of parts of the site and the provision of planting buffer areas.
5. In my view, the proposal does not offend the objectives of ESO4.
6. Similarly, I am unable to conclude that earthworks proposed in this case give rise to any untoward issues with respect to matters raised in the decision guidelines to the Green Wedge zone.
7. The real issue of concern to Ms Gillson is whether the noise impacts associated with the use of motor cross track are reasonable and should conditions be imposed to limit activity.
8. It is clear that a permit is not required for the use of land given that the track is ancillary to the dwelling; a permit is only required for development. However, it is also clear that the development facilitates the use and, in particular, the form of the earthworks proposed in this case give rise to the potential for noise impacts over and above those that could be contemplated if the track were simply left as a dirt track on a large property. For example, the ramps, jumps and turns that have been formed by the earthworks may give rise to increased noise.
9. In this regard I draw support from the Tribunal's comments in the Monea case when it said that it had no doubt that ".......without these earthworks, there would be no ability to generate the same degree of noise from the subject land as has been measured by the acoustic consultant. Therefore, it is my opinion that it is reasonable and lawful to add use conditions pertaining to noise emission..........."
10. In Rogers case, the tribunal also commented that:

"..... the forming of the track making it is safer to use encourages the Grist boys to use the track more frequently and that it is as a result of these works that there will be an intensification of the use".

1. While the Tribunal resisted including a condition restricting the hours of operation, it nonetheless did not form the view that it would be unlawful for it to do so. Rather, the tribunal took into account the circumstances of that particular case which, in contrast to this case, did not involve the development of a track in an area where there is a considerable amount of rural lifestyle activity.
2. In this case, the site is located within what I would consider within a rural residential lifestyle area. A degree of tranquillity is sought. The proposed works facilitate the more intensive use of the track. That use has consequences on the amenity of surrounding residents.
3. All of this needs to be balanced against the fact that the motorbikes can be ridden on the land without a permit subject to compliance with the local law.
4. In my view, the site's proximity to many houses including that of the applicant for review, forms an appropriate basis upon which to include conditions which are more restrictive that those which are provided for in the local law. While I understand that the applicants have chosen this particular site because it is suited to the provision of a track given its size, it must also be acknowledged that the site is in close proximity to many houses.
5. Having considered and balanced these competing interests, it is my conclusion that a permit should be issued, generally with the conditions set out in the Notice of Decision issued by the council. However, I will add conditions that restrict the use of the track to no more than 5 days per week, with up to 2.5 hours of activity, including rest breaks, allowed on 3 days; while on the other 2 days, the activity may occur for up to 3.5 hours including rest breaks. The hours should be from 9am to 6pm during week days but not public holidays, and between 10am and 6pm on weekends and public holidays.
6. To some extent these restrictions are arbitrary; however, they reflect what was discussed at the hearing and allow the applicant's children more riding time than the 8-10 hours indicated by the council.
7. I will also include the noise limit condition which is reflected in the local law.

[1] City of Casey Recreational Vehicles Local law No 7 - adopted by the council on 1 November 2007.

[2] [2007] VCAT 1063

[3] [2007] VCAT 1797

[4] Refer DSE letter dated 13 August 2007 to the Responsible Authority.